The best appellate strategy comes from understanding:
Clients – including their businesses and priorities.
The legal questions – including the ramifications of both positive and negative decisions for clients.
Procedure – including how to take advantage of procedural opportunities and to avoid or overcome procedural obstacles.
In addition to handling appeals, the members of Drinker Biddle’s Appellate Team have robust practices in a variety of industries and legal disciplines, focusing on complex litigation matters in their own right. This makes a difference in how Drinker Biddle’s lawyers approach appellate work. They understand the complexity of underlying issues and can help shape questions and arguments for possible appeals. When appropriate, our appellate lawyers coordinate with our trial lawyers at various important points during the lifecycle of cases, including assisting with the preparation of dispositive motions, advising on when and how to preserve issues and the record, pretrial or at trial, and helping determine whether an interlocutory or collateral appeal is warranted.
Taken together, this powerful combination of trial and appellate skills enables our Appellate Team to counsel clients as to whether, when, and how to take an appeal.
The following are a sample of areas where Drinker Biddle’s appellate lawyers excel:
Drinker Biddle’s commitment to protecting core constitutional rights spans much of the past century. The inimitable Henry W. Sawyer III argued landmark U.S. Supreme Court cases that have helped define the boundaries separating church and state, Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) and Lemon v. Kurtzman, 403 U.S. 60 2(1971) and 411 U.S. 192 (1973), as well as the noted case Gilfillan v. Philadelphia, 637 F.2d 924 (3d Cir. 1980). Drinker Biddle lawyers have served as counsel for amicus organizations in later cases defining the parameters of those holdings, including Freethought Soc'y v. Chester County, 334 F.3d 247 (3d Cir. 2003); Van Orden v. Perry, 545 U.S. 677 (2005) and In re. 1839 North Eighth Street 595 Pa. 241; 938 A.2d 341 (2007).
Our commitment to core values and clients does not diminish over time. Charles J. Biddle represented a family in the seminal state secrets case United States v. Reynolds, 345 U.S. 1 (1953), and Wilson M. Brown III represented the same family in an attempt to reopen the matter a half-century later. See Herring v. United States, 424 F.3d 384 (3d Cir. 2005), cert. denied, 2006 U.S. LEXIS 3491. More recently, Drinker Biddle lawyers co-authored an amicus curiae brief that was cited with approval by the U.S. Supreme Court in a decision that left open the possibility that a lawyer’s failure to meet deadlines might toll a death row inmate’s appeal deadline. See Holland v. Florida, published on June 14, 2010.
Our lawyers have a long and successful track record of developing strategies to defeat class certification or reverse certification orders on appeal. Chicago partner Bradley J. Andreozzi played a key role in the successful defense of one of the largest class actions in Illinois history, acting as issue preservation counsel during the lengthy jury trial, and then as an appellate counsel in obtaining the reversal of a $1.2 billion judgment – at the time the largest in Illinois history – on the grounds that the case should never have been certified as a class action. See Avery v. State Farm Mutual Auto. Ins. Co., 216 Ill. 2d 100 (2005).
Drinker Biddle has longstanding relationships with and success in defending some of the world’s largest accounting firms as well as individual accountants and auditors in both securities and professional liability matters – including significant appellate matters. Our lawyers have achieved precedential appellate victories for accountants and auditors on issues such as existence of a duty to third parties who claim to have relied on the audit opinion [Ellis v. Grant Thornton LLP, 530 F.3d 280 (4th Cir. 2008)], scienter [Fidel v. Ernst & Young, 392 F.3d 220 (6th Cir. 2004)], and loss causation [In re IKON Office Solutions, Inc. Sec. Litig., 277 F.3d 658 (3d Cir. 2002) and AUSA Life Ins. Co. v. Ernst & Young, 206 F.3d 202 (2d Cir. 2000) and 39 Fed. Appx. 667 (2d Cir. 2002)].
Administrative Agency, Regulatory or Statutory Challenges
Drinker Biddle lawyers have weighed in on a broad range of issues in this area – from questions such as preemption [See, e.g., Waste Management of New Jersey, Inc. v. Union Cty. Utilities Authority, 399 N.J. Super. 508 (App. Div. 2008)] to the “one provider rule.” Recently, Drinker Biddle and the ACLU represented Prison Legal News and Paul Wright in one of the first appellate decisions construing Pennsylvania’s new Right-to-Know Law. In that case, the Department of Corrections had demanded an estimated fee of thousands of dollars. In remanding, the Commonwealth Court explained that an agency must provide a basis for its fee estimate and that it must set forth a non-discriminatory reason if it chooses to refuse a fee waiver.
Most recently, a panel – and subsequently a unanimous en banc panel – of the Pennsylvania Commonwealth Court decided an important question of statutory construction regarding Pennsylvania’s retaliatory tax on other states’ insurance companies doing business in the Commonwealth. Reversing a decision of the Board of Finance and Revenue, the court held that our client, Selective Way Insurance Co., a New Jersey insurer, was entitled to take into account New Jersey’s cap on taxable premiums at 12.5% of worldwide premiums when calculating Pennsylvania retaliatory tax. The en banc opinion is available at 2010 Pa. Commw. LEXIS 630 (November 30, 2010).
Drinker Biddle lawyers have participated in many major antitrust appeals, including the landmark U.S. Supreme Court cases of Eastern Railroad Presidents v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and Falls City Indus. v. Vanco Beverage, 460 U.S. 428 (1983); the Third Circuit cases of In re Linerboard Antitrust Litigation and In re. Baby Food Antitrust Litigation, and the remittitur and then reversal of the verdict in Trigen v. Oklahoma Gas & Electric, 244 F.3d 10th Cir. 2001, as well as the petition for certiorari, denied the same year. Most recently, a Third Circuit panel unanimously affirmed a dismissal of exclusive dealing claims against dealers alleged to have conspired with a manufacturer to restrain trade and protect a manufacturer’s monopoly. See Howard Hess Dental v. Dentsply Int’l, Inc., 602 F.3d 237 (3d Cir. 2010).
Serious questions are raised at the intersections of antitrust and intellectual property law. Drinker Biddle weighed in as counsel for an amicus in both the Washington, D.C., Circuit Court of Appeals and before the U.S. Supreme Court in successfully urging denial of the petition for certiorari in Rambus, Inc. v. FTC, 522 F.3d 456 (D.C. Cir. 2008), cert. denied, 77 U.S.L.W. 3467 (2009). We also were amicus counsel in Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297 (3d Cir. 2007).
In Watson Industries v. Murata Mfg. Co., it took the Federal Circuit just five days from oral argument to affirm the Western District of Wisconsin’s grant of summary judgment for no infringement. See 301 F. Supp. 2d 933 (W.D. Wis. 2003).
Recent trademark appeals argued by Drinker Biddle lawyers include Urban Outfitters, Inc. v. BCBG Max Azria Group, Inc., 318 Fed. Appx. 146 (3d Cir. 2009), in which the court affirmed the merits and remanded the case. On remand, the District Court awarded our client significant attorneys’ fees – a determination that is currently on appeal.
Securities and Finance
Appellate lawyers serve often as amicus counsel to represent a non-party’s interest. The Third Circuit asked Drinker Biddle to serve as an amicus to the court in briefing a question as to the proper interpretation of Section 20(a) of the Securities and Exchange Act. The Securities and Exchange Commission (SEC) had brought an action to enforce payment of a penalty against the president of a broker-dealer, even though the penalty had been assessed against the broker-dealer only. The SEC argued that the president was “liable to” the SEC as a controlling party. Because the nonpayment of the penalty was – in the Third Circuit’s view – separate from the acts and proceedings that gave rise to the penalty, it was proper for the SEC to have brought the action against the president in the way that it did. In a footnote, however, the court made clear that the SEC may not use Section 20(a) in virtually any other set of circumstances, adopting, to that extent, the argument Drinker Biddle made in its amicus brief. See SEC v. J.W. Barclay & Co., Inc., 442 F.3d 834 (3d Cir. 2006).
Professional Obligations and Liabilities
Drinker Biddle’s leadership in the field of legal ethics – from Henry S. Drinker to Lewis H. Van Dusen, Jr. to Lawrence J. Fox – has long been recognized. Drinker Biddle lawyers have participated in appeals on issues of confidentiality. See Kinsella v. NYT Television, 382 N.J. Super. 102 (App. Div. 2005). We have also weighed in on conflicts of interest, in amicus briefs in Mickens v. Taylor, 535 U.S. 162 (2002) and State v. Ring, 65 P.3d 915 (Ariz. 2003).
White Collar Criminal Defense
Drinker Biddle’s work in this area ranges from crafting an amicus brief in a landmark case that focused on a lawyer’s duty to investigate, Wiggins v. Smith, 539 U.S. 510 (2003), to our representation of two companies appealing a recent multimillion dollar, high-profile white collar case verdict – a case that resulted in the award of a new trial.
Employee Benefits & Executive Compensation
Drinker Biddle lawyers have represented numerous employers and claim administrators in this field, including in appeals regarding employee benefit claims governed by ERISA. Most recently, Drinker Biddle lawyers secured the dismissal of a plaintiff’s appeal seeking reinstatement of long-term disability benefits. A Third Circuit panel affirmed the district court’s grant of summary judgment to the employer in all aspects. Goletz v. Prudential Ins. Co. of Am., No. 08-4740, 2010 U.S. App. LEXIS 11501 (3d Cir. June 7, 2010).
Noteworthy Appellate Lawyers
Drinker Biddle’s noteworthy appellate lawyers includes Deborah T. Poritz, a former chief justice of the New Jersey Supreme Court.
Additionally, members of Drinker Biddle’s Appellate Team serve in leadership roles inside and outside the firm: the Chairman of the firm is an appellate lawyer, as is the vice-chair of the firm's Products Liability and Mass Tort Practice Group – who is a certified specialist in appellate law through the State Bar of California Board of Legal Specialization. Other Drinker Biddle appellate lawyers serve as members and leaders of state bar associations and the American Bar Association. One currently serves as Deputy Counsel to the Pennsylvania Supreme Court Appellate Procedural Rules Committee. Many are also frequent speakers and authors.
U.S. Supreme Court Bar Members
The following members of the Appellate Team are members of the U.S. Supreme Court Bar:
Bradley J. Andreozzi
Lawrence J. Fox
D. Alicia Hickok
Alan J. Lazarus
Ross A. Lewin
Deborah T. Poritz
Edward M. Posner
Alfred W. Putnam, Jr.
Robert A. Skitol
Kenneth M. Vorrasi
Ken J. Wilbur